Posted on 02/05/2016 2:59:26 AM PST by RC one
It would depend on the state. In California, there was a case Anna Johnson v. Mark and Crispina Calvert (SO 23721) where the court concluded that if the genetic and birth mother are not one and the same person, then "she who intended to procreate the child—that is, she who intended to bring about the birth of a child that she intended to raise as her own—is the natural mother under California law.
Yes, and the justices in Wong v. Kim agree with you. Read what else they have to say:
The Fourteenth Amendment of the Constitution . . . contemplates two sources of citizenship, and two only: birth and naturalization. Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law. But citizenship by birth is established by the mere fact of birth under the circumstances defined in the Constitution. Every person born in the United States, and subject to the jurisdiction thereof becomes at once a citizen of the United States, and needs no naturalization. A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory; or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts."
It went to a blog actually and then returned to Free Rep.
http://statesidelegal.org/citizenship-children-born-servicemembers-overseas
Certain children born outside the U.S. to U.S. citizens are citizens from the moment they are born. The law on this has changed many times since the early 1900's. The law in effect on the date of the child's birth is the law that controls. This discussion refers to the law that has been in affect since November 14, 1986. A child born outside the U.S. after that date is a U.S. citizen at birth in the following situations:
Or the father acknowledged paternity in writing under oath, or paternity was established by a competent court, and the father agreed in writing to financially support the child until the child turned 18.
A child abroad who is a U.S. citizen from birth can apply (or his parents can apply) for a certificate of birth abroad, and for a U.S. passport, from the nearest U.S. consulate.
Again, applying these laws can be complicated, especially those described above at numbers 2 -5. So it is best to speak with an experienced immigration attorney. She will help you to better understand the process. Also, speak with an immigration lawyer if you have questions about the citizenship of a child born abroad to a U.S. citizen prior to November 15, 1986. The rules were different then.
A member of the U.S. military deployed outside the U.S. may have a child born abroad who is not a U.S. citizen at birth. For example,
Here are some common scenarios, followed by brief explanations.
Neither the U.S. service member nor the other parent were U.S. citizens when their child was born. The child will not be a U.S. citizen at birth. The child may be able to obtain U.S. citizenship later in a variety of ways.
In general, if a stepchild is over 18 when a U.S. citizen or permanent resident marries the child's parent, the stepchild gains no immigration benefits through the marriage. Only the child's parent has the ability to confer immigration benefits on the child. The natural parent can gain her own immigration status through marriage to the U.S. citizen or permanent resident.
If the stepparent relationship was created before the stepchild's 18th birthday, the stepchild's ability to benefit from the relationship depends on the U.S. service member's immigration status, as follows.
In general, adoption of a child by a U.S. citizen or permanent resident gives no immigration benefit to the adopted child unless the adoption is finalized before the child turns 16. An exception to this rule exists for a child adopted before the child's 18th birthday, if:
If the adoption process is completed before the required age limit(s), the adoptive child(ren)'s ability to benefit from the relationship depends on the U.S. service member's immigration status, as follows.
I will let the wise counselor answer.
I view MD Expat in PA as a contemptible liar, and will not interact with it.
I cannot disagree. Thanks.
Trump forced the Obama crew to produce a US born birth certificate for Obama... and people think a Canadian birth certificate for Cruz makes him eligible.
Cruz ought to be ashamed to make such mockery of the Constitution.
Neither am I, but I have had a year of Contract and Constitutional law. So I know how to read a statute and a court decision. She is using "citizen at birth" from a statute and conflating it into meaning natural born. Citizenship abroad to a child born of an American mother is ONLY granted if the mother meets certain requirements enacted by Congress. If she doesn't, the child is not granted citizenship. If he was a natural born citizen at birth, there would be no need to place any restrictions on the mother in granting citizenship to the child. He would automatically have it no matter the circumstances of the mother.
Not everyone agrees:
On the Meaning of "Natural Born Citizen"
Under the longstanding English common-law principle of jus soli, persons born within the territory of the sovereign (other than children of enemy aliens or foreign diplomats) are citizens from birth. Thus, those persons born within the United States are "natural born citizens" and eligible to be President. Much less certain, however, is whether children born abroad of United States citizens are "natural born citizens" eligible to serve as President.
As early as 1350, the British Parliament approved statutes recognizing the rule of jus sanguinis, under which citizens may pass their citizenship by descent to their children at birth, regardless of place. Similarly, in its first naturalization statute, Congress declared that "the children of citizens of the United States, that may be born beyond the sea, or out of the limits of the United States, shall be considered as natural born citizens." 1 Stat. 104 (1790). The "natural born" terminology was dropped shortly thereafter. See, e.g., 8 U.S.C. § 1401(c).
But the question remains whether the term "natural born Citizen" used in Article II includes the parliamentary rule of jus sanguinis in addition to the common law principle of jus soli. In United States v. Wong Kim Ark (1898), the Supreme Court relied on English common law regarding jus soli to inform the meaning of "citizen" in the Fourteenth Amendment as well as the natural-born-citizenship requirement of Article II, and noted that any right to citizenship though jus sanguinis was available only by statute, and not through the Constitution.
Notwithstanding the Supreme Court's discussion in Wong Kim Ark, a majority of commentators today argue that the Presidential Eligibility Clause incorporates both the common-law and English statutory principles, and that therefore, Michigan Governor George Romney, who was born to American parents outside of the United States, was eligible to seek the Presidency in 1968.
BTW - in Wong Kim Ark he was deemed by the SCOTS to be a Natural Born US citizen from birth. "Children born in the United States of foreigners permanently domiciled and resident in the U.S. at the time of birth automatically acquire U.S. citizenship via the Citizenship Clause of the Fourteenth Amendment."
Rogers v. Bellei
The appellee, Aldo Mario Bellei, was born in Italy to an Italian father and an American mother. He acquired U.S. citizenship by virtue of section 1993 of the Revised Statutes of 1874, which conferred citizenship upon any child born outside the United States of only one American parent (known as jus sanguinis). Bellei received several warnings from government officials that failure to fulfill the five-year residency requirement before age 28 could result in loss of his U.S. citizenship. In 1964, he received a letter informing him that his citizenship had been revoked under § 301(b) of the Immigration and Nationality Act of 1952. Bellei challenged the constitutionality of this act. The three-judge District Court held the section unconstitutional, citing Afroyim v. Rusk, and Schneider v. Rusk. The Supreme Court reversed the decision, ruling against Bellei.
Issue
Does Congress have the power to revoke the citizenship of a non-naturalized citizen of the United States by imposing conditions subsequent regarding residency?
Holding and Rule (Blackmun)
Yes. Congress has the power to revoke the citizenship of a non-naturalized citizen of the United States by imposing conditions subsequent regarding residency.
Congress has the power to impose conditions subsequent regarding residence upon the citizenship of those born outside the United States. The plaintiff is not covered by the Fourteenth Amendment which defines "citizen" as one who is "born or naturalized in the United States".
The central factor in our weighing of the plaintiff's claim to United States citizenship is that he was neither born nor naturalized in the United States and has not been subject to its jurisdiction. The first sentence of the Fourteenth Amendment therefore does not apply to Bellei. The plaintiff's claim must therefore rest on some restriction of the power of Congress other than the Fourteenth Amendment.
Our law in this area follows the English concept of jus soli; the place of birth governs citizenship status except as modified by statute. Congress has an appropriate concern regarding dual nationality. The provisions of the Act imposing conditions subsequent on citizenship are not unreasonable, arbitrary, or unlawful. The Act is not an unconstitutional exercise of power by Congress.
Disposition
Reversed.
Dissent (Black)
The Court today holds that Congress can indeed rob a citizen of his citizenship just so long as five members of this Court can satisfy themselves that the congressional action was not unreasonable, arbitrary, or unlawful. This test does not appear in the Constitution.
The Court today is overruling its holding in Afroyim that no one can be deprived of citizenship without his assent. This meaning of citizenship under the Fourteenth Amendment should not be blown around by every passing political wind that changes the composition of this Court.
FWIW, the statute under which Bellei was stripped of his citizenship was repealed by the U.S. Congress in 1978.
One has to be careful not to put SCOTUS rulings as being the very last word or always being the correct ruling or not subject to being subsequently overturned.
See United States v. Windsor and Obergefell v. Hodges, NIFB V Seleblius, King V Burwell, Kelo v. City of New London, etc. Were all these rulings correct and the very "last word"? And how did Dred Scott v. Sandford end up working out?
List of overruled United States Supreme Court decisions
We are talking about children born to service members. Nobody is saying they are not citizens at birth. They are. They are just not natural born citizens.
If that is the case, then every married US service member of a child procreating age who is given orders to deploy for a long term assignment overseas and moves there with their spouse, such as a base in Germany, should be able to refuse such an assignment based on the assumption that any of their children born while serving their country overseas, would be deemed to be a second class citizen. Would you not agree?
Perhaps a US service member will eventually bring a case before the SCOTUS because their child is only a "naturalized" citizen and not subject to the full rights as one born on US soil? Or most likely not because such children born abroad to two US citizen parents while deployed abroad are NBC's.
I am NOT a second class citizen. I just am NOT eligible to hold the office of president. AND if US citizens wish to give their children ‘natural born’ citizenship then do NOT have children outside of the US. You are aware ignorance of the law is no excuse, are you NOT?
At this point, the only take one can reasonably have is that you are willfully misleading. All 9 justices in that case were working from the premise that Bellei was naturalized. If his citizenship did not depend on a statute, it could not have been stripped by Congress. The word "non-naturalized" appears nowhere in the decision. That is your own invention, and you insert it with the goal of misleading others.
-- If that is the case, then every married US service member of a child procreating age who is given orders to deploy for a long term assignment overseas and moves there with their spouse, such as a base in Germany, should be able to refuse such an assignment based on the assumption that any of their children born while serving their country overseas, would be deemed to be a second class citizen. Would you not agree? --
Naturalized citizens are not second class citizens. And as for the service-people, the government is very open about the status of children born abroad. There is no effort made to deceive them. Children born abroad are not eligible to become president. The cases that are brought exist because the child is held to not be a citizen at all. Congress has VERY generous naturalization statutes, and most people are satisfied with that.
I think the issue is that "you can't ever become President" is not something most Americans want to tell their children. We live in an era of "participation trophies" (as opposed to one winner and the rest losers), unenforced national borders, a lost sense of national identity, "gender fluidity," and "inclusion." People see a bright line defining something and they wince at the brightness of it. They don't like it. They've been taught not to.
No, there is something called the Uniform Code of Military Justice. Perhaps you have heard of it ? When you enter the military, you abide by that. You don't get to choose your orders.
You seem to be operating on the assumption that all 9 Justices agreed that Bellei should be stripped of his citizenship. They did not.
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE MARSHALL join, dissenting.
Less than four years ago this Court held that
The holding was clear. Congress could not, until today, consistently with the Fourteenth Amendment enact a [401 U.S. 815, 837]
law stripping an American of his citizenship which he has never voluntarily renounced or given up. Now this Court, by a vote of five to four through a simple change in its composition, overrules that decision.
The Court today holds that Congress can indeed rob a citizen of his citizenship just so long as five members of this Court can satisfy themselves that the congressional action was not "unreasonable, arbitrary," ante, at 831; "misplaced or arbitrary," ante, at 832; or "irrational or arbitrary or unfair," ante, at 833. My first comment is that not one of these "tests" appears in the Constitution. Moreover, it seems a little strange to find such "tests" as these announced in an opinion which condemns the earlier decisions it overrules for their resort to cliches, which it describes as "too handy and too easy, and, like most cliches, can be misleading." Ante, at 835. That description precisely fits those words and clauses which the majority uses, but which the Constitution does not.
The Constitution, written for the ages, cannot rise and fall with this Court's passing notions of what is "fair," or "reasonable," or "arbitrary." The Fourteenth Amendment commands:
Speaking of this very language, the Court held in Afroyim that no American can be deprived of his citizenship without his assent. Today, the Court overrules that holding. This precious Fourteenth Amendment American citizenship should not be blown around by every passing political wind that changes the composition of this Court. I dissent.
Bellei became an American citizen under the terms of [401 U.S. 815, 838] 1993 of the Revised Statutes, as amended, 1 and he has neither renounced his American citizenship nor voluntarily assented to any governmental act terminating it. He has never given any indication of wanting to expatriate himself but, rather, has consistently maintained that he wants to keep his American citizenship. In my view, the decision in Afroyim, therefore, requires the Court to hold here that Bellei has been unconstitutionally deprived by 301 (b) of the Immigration and Nationality Act of 1952 2 of his right to be an American citizen. Since 301 (b) does not take into account in any way whether the citizen intends or desires to relinquish his citizenship, that section is inevitably inconsistent with the constitutional principles declared in Afroyim.
The Court today holds that the Citizenship Clause of the Fourteenth Amendment has no application to Bellei. The Court first notes that Afroyim was essentially a case construing the Citizenship Clause of the Fourteenth Amendment. Since the Citizenship Clause declares that: "All persons born or naturalized in the United States . . . are citizens of the United States . . .," the Court reasons that the protections against involuntary expatriation declared in Afroyim do not protect all American citizens, but only those "born or naturalized in the United States." Afroyim, the argument runs, was naturalized in this country so he was protected by the Citizenship Clause, but Bellei, since he acquired his American citizenship at birth in Italy as a foreign-born child of an American citizen, was neither born nor naturalized in the United States and, hence, falls outside the scope of the Fourteenth Amendment guarantees declared in Afroyim. One could hardly call this a generous reading of the [401 U.S. 815, 839] great purposes the Fourteenth Amendment was adopted to bring about.
While conceding that Bellei is an American citizen, the majority states: "He simply is not a Fourteenth-Amendment-first-sentence citizen." Therefore, the majority reasons, the congressional revocation of his citizenship is not barred by the Constitution. I cannot accept the Court's conclusion that the Fourteenth Amendment protects the citizenship of some Americans and not others.
Indeed, the concept of a hierarchy of citizenship, suggested by the majority opinion, was flatly rejected in Schneider v. Rusk, 377 U.S. 163 (1964): "We start from the premise that the rights of citizenship of the native born and of the naturalized person are of the same dignity and are coextensive." Id., at 165. The Court there held that Congress could not deprive Mrs. Schneider of her citizenship, which she, like Mr. Bellei in the present case, acquired derivatively through her citizen mother. Consequently, the majority in its rush to overrule Afroyim must also, in effect, overrule Schneider as well.
Under the view adopted by the majority today, all children born to Americans while abroad would be excluded from the protections of the Citizenship Clause and would instead be relegated to the permanent status of second-class citizenship, subject to revocation at the will of Congress. The Court rejected such narrow, restrictive, and super-technical interpretations of the Citizenship Clause when it held in Afroyim that that Clause "was designed to, and does, protect every citizen of this Nation . . . ."387 U.S., at 268 .
Afroyim's broad interpretation of the scope of the Citizenship Clause finds ample support in the language and history of the Fourteenth Amendment. Bellei was not "born . . . in the United States," but he was, constitutionally speaking, "naturalized in the United States." Although those Americans who acquire their citizenship [401 U.S. 815, 840] under statutes conferring citizenship on the foreign-born children of citizens are not popularly thought of as naturalized citizens, the use of the word "naturalize" in this way has a considerable constitutional history. Congress is empowered by the Constitution to "establish an uniform Rule of Naturalization," Art. I, 8. Anyone acquiring citizenship solely under the exercise of this power is, constitutionally speaking, a naturalized citizen. The first congressional exercise of this power, entitled "An Act to establish an uniform Rule of Naturalization," was passed in 1790 at the Second Session of the First Congress. It provided in part:
This provision is the earliest form of the statute under which Bellei acquired his citizenship. Its enactment as part of a "Rule of Naturalization" shows, I think, that the First Congress conceived of this and most likely all other purely statutory grants of citizenship as forms or varieties of naturalization. However, the clearest expression of the idea that Bellei and others similarly situated should for constitutional purposes be considered as naturalized citizens is to be found in United States v. Wong Kim Ark, 169 U.S. 649
(1898):
The Court in Wong Kim Ark thus stated a broad and comprehensive definition of naturalization. As shown in Wong Kim Ark, naturalization when used in its constitutional sense is a generic term describing and including within its meaning all those modes of acquiring American citizenship other than birth in this country. All means of obtaining American citizenship which are dependent upon a congressional enactment are forms of naturalization. This inclusive definition has been adopted in several opinions of this Court besides United States v. Wong Kim Ark, supra. Thus in Minor v. Happersett, 21 Wall. 162, 167 (1875), the Court said: "Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. . . . [N]ew citizens may be born or they may be created by naturalization." And in Elk v. Wilkins, 112 U.S. 94
(1884), the Court took the position that the Fourteenth Amendment
Moreover, this concept of naturalization is the only one permitted by this Court's consistent adoption of the view that the Fourteenth Amendment was intended to supply a comprehensive definition of American citizenship. In an opinion written shortly after the Fourteenth Amendment was ratified, the Court stated that one of the primary purposes of the Citizenship Clause was "to establish a clear and comprehensive definition of citizenship which should declare what should constitute citizenship of the United States, and also citizenship of a State." Slaughter-House Cases, 16 Wall. 36, 73 (1873). In his study, The Adoption of the Fourteenth Amendment, Professor Flack similarly concluded that the Citizenship Clause "put beyond doubt and cavil in the original law, who were citizens of the United States." H. Flack, The Adoption of the Fourteenth Amendment 89 (1908). And in Afroyim both majority and dissenting Justices appear to have agreed on the basic proposition that the scope of the Citizenship Clause, whatever its effect, did reach all citizens. The opinion of the Court in Afroyim described the Citizenship Clause as "calculated completely to control the status of citizenship." 387 U.S., at 262
. And the dissenting Justices agreed with this proposition to the extent of holding that the Citizenship Clause was a "declaration of the classes of individuals to whom citizenship initially attaches." Id., at 292.
The majority opinion appears at times to rely on the argument that Bellei, while he concededly might [401 U.S. 815, 843] have been a naturalized citizen, was not naturalized "in the United States." This interpretation obviously imposes a limitation on the scope of the Citizenship Clause which is inconsistent with the conclusion expressed above that the Fourteenth Amendment provides a comprehensive definition of American citizenship, for the majority's view would exclude from the protection of that Clause all those who acquired American citizenship while abroad. I cannot accept the narrow and extraordinarily technical reading of the Fourteenth Amendment employed by the Court today. If, for example, Congress should decide to vest the authority to naturalize aliens in American embassy officials abroad rather than having the ceremony performed in this country, I have no doubt that those so naturalized would be just as fully protected by the Fourteenth Amendment as are those who go through our present naturalization procedures. Rather than the technical reading adopted by the majority, it is my view that the word "in" as it appears in the phrase "in the United States" was surely meant to be understood in two somewhat different senses: one can become a citizen of this country by being born within it or by being naturalized into it. This interpretation is supported by the legislative history of the Citizenship Clause. That clause was added in the Senate rather late in the debates on the Fourteenth Amendment, and as originally introduced its reference was to all those "born in the United States or naturalized by the laws thereof." Cong. Globe, 39th Cong., 1st Sess., 2768. (Emphasis added.) The final version of the Citizenship Clause was undoubtedly intended to have this same scope. See Flack, supra, at 88-89.
The majority takes the position that Bellei, although admittedly a citizen of this country, was not entitled to the protections of the Citizenship Clause. I would not depart from the holding in Afroyim that every American [401 U.S. 815, 844] citizen has Fourteenth Amendment citizenship. Bellei, as a naturalized American, is entitled to all the rights and privileges of American citizenship, including the right to keep his citizenship until he voluntarily renounces or relinquishes it.
The Court today puts aside the Fourteenth Amendment as a standard by which to measure congressional action with respect to citizenship, and substitutes in its place the majority's own vague notions of "fairness." The majority takes a new step with the recurring theme that the test of constitutionality is the Court's own view of what is "fair, reasonable, and right." Despite the concession that Bellei was admittedly an American citizen, and despite the holding in Afroyim that the Fourteenth Amendment has put citizenship, once conferred, beyond the power of Congress to revoke, the majority today upholds the revocation of Bellei's citizenship on the ground that the congressional action was not "irrational or arbitrary or unfair." The majority applies the "shock-the-conscience" test to uphold, rather than strike, a federal statute. It is a dangerous concept of constitutional law that allows the majority to conclude that, because it cannot say the statute is "irrational or arbitrary or unfair," the statute must be constitutional.
Of course the Court's construction of the Constitution is not a "strict" one. On the contrary, it proceeds on the premise that a majority of this Court can change the Constitution day by day, month by month, and year by year, according to its shifting notions of what is fair, reasonable, and right. There was little need for the founders to draft a written constitution if this Court can say it is only binding when a majority finds it fair, reasonable, and right to make it so. That is the loosest construction that could be employed. It is true that England has moved along very well in the world without a written constitution. But with complete familiarity [401 U.S. 815, 845] with the English experience, our ancestors determined to draft a written constitution which the members of this Court are sworn to obey. While I remain on the Court I shall continue to oppose the power of judges, appointed by changing administrations, to change the Constitution from time to time according to their notions of what is "fair" and "reasonable." I would decide this case not by my views of what is "arbitrary," or what is "fair," but rather by what the Constitution commands.
I dissent.
- See more at: http://caselaw.findlaw.com/us-supreme-court/401/815.html#sthash.rGYEoRt5.dpuf
I agree 100%. But again I ask why should a child born abroad to a US service member and his spouse while on a deployment overseas, granted that they are both US citizens, have met the US residency requirements and register the birth at the US consulate, not be afforded the same citizenship a NBC, as would be granted to the children of US diplomats born abroad?
Again you're reading something in, out of your imagination. I know that the majority held his citizenship could be stripped, and I know that the dissent (as did the majority) found Bellei to be a naturalized citizen. The question of his citizenship at birth was not an issue, all 9 justices agreed he had it, and that he was a naturalized citizen.
Brief Summary of Rogers v. Bellei: 01/16/2016 6:14:49 PM
The difference between the majority and dissent is that the majority found Bellei to be naturalized, but not within the language of the 14th amendment, and the dissent though the language of the 14th amendment should be read as "naturalized anywhere in the world" instead of "naturalized in the US," which would bring Bellei into the 14th amendment and the holding in the Afroyim case, that citizenship cannot be stripped from a 14th amendment naturalized citizen.
All that is a diversion from the point - that Bellei was naturalized, and Cruz, being in a similar birth-abroad to a US-citizen parent, made citizen by Act of Congress, is likewise naturalized.
I agree with you on that. Unfortunately, that is the law. Short of an amendment, there is nothing you can do.
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